[2017] KEHC 4260 (KLR)
The court found that it would not be just to determine the application without the respondent's replying affidavit, which is alleged to have been filed but is missing from the court file. The judge directed that the parties ensure a copy of the affidavit is placed on record before the application can be determined,...
Source-derived case information.
- Citation
- [2017] KEHC 4260 (KLR)
- Parties
- Applicant: __MISSING__; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 339 of 1990
- Procedural Posture
- Succession Cause / Interlocutory Application; Ruling on Missing Affidavit
- Outcome
- Application deferred pending filing of missing affidavit.
- Judges
- DN Musyoka
- Legal Topics
- Probate and Administration, Missing Affidavit, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
__MISSING__
Applicant
__MISSING__
Respondent
Procedural Posture
Succession Cause / Interlocutory Application; Ruling on Missing Affidavit
Legal Issues
- 1 Whether the application dated 28th June 2016 can be determined in the absence of the respondent's replying affidavit.
- 2 Whether it is just to proceed without the missing affidavit on record.
Ratio Decidendi
The court found that it would not be just to determine the application without the respondent's replying affidavit, which is alleged to have been filed but is missing from the court file. The judge directed that the parties ensure a copy of the affidavit is placed on record before the application can be determined, upholding the principle of procedural fairness and the right to be heard.
Court Disposition
Application deferred pending filing of missing affidavit.
Orders
- Parties to cause a copy of the respondent's replying affidavit to be placed on record.
- A date for ruling to be given at a mention date to be fixed at delivery of this ruling or at the registry on priority.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
SUCCESSION CAUSES NO. 339 OF 1990
IN THE MATTER OF THE ESTATE OF WILLIAM GITAU GITHUMBI alias GITAU GITHUMBI (DECEASED)
RULING
1. The application for determination is dated 28th June 2016.
2. From the respondents written submissions it appears that they did respond to it through a replying affidavit sworn on 23rd August 2016 and filed in court on 26th August 2016. I have scrupulously perused through the court file and I have been unable to trace the said replying affidavit.
3. It would not be just to determine the application without the replying affidavit. I shall therefore direct the parties to cause a copy thereof to be placed on record. A date for ruling shall thereafter be given on a mention date to be fixed at the delivery of this short ruling or at the registry on priority.
DATED, SIGNED and DELIVERED at NAIROBI THIS 2ND DAY OF JUNE, 2017.
W. MUSYOKA
JUDGE